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tv   [untitled]    August 4, 2014 7:30am-8:01am PDT

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when you agree with your report you are agreeing that in regard to your department your department did then violate the particular rules relating to the obligation to turn over these materials at the time they should have been turned over? >> yes. we will contend those will not willfully done in that manner. >> but they were violations and you accept the fact that your department violated those regulations whether willful or non willful. the materials that are referenced in the report that should have been turned over weren't turned over in a timely fashion. they may have been turned over later but at the time they were supposed to be. >> that's correct. >> and you're aware that's a violation of the sunshine
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ordinance and also the public records ordinance in regard to a city department having an obligation to turn those matters over timely. is that correct? >> we are. in fact -- >> so just to sum up then your -- you are stating to us that the planning department violated those sections referenced in the report of our staff? >> we did not provide some of those materials in a timely fashion, yes. >> which was a violation of the rules as reflected in the materials that are put forth in the report of our staff? you've already said you agree with it? >> that's correct. >> okay. i don't have anything further. others? >> thank you for your recounting and commissioner keane that helped me. i was going to come at this
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differently. would you treat this request the same way? how would you treat the request that came from mr. ringel? how would the department treat the request today? >> it's treaty similarly but since i have been appointed we made procedurally changes and added staff in my department to specifically target these types of public record -- well, all record requests really, and so we have a better procedure in place to identify those planner who is are involved with processing materials so in fact -- for example ben fu and don louis were not the only two planners working on the case but the primary respondents to the records request so as part of that some of the records other than not provided to him because they were not in their
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possession but of other planners. >> so you're developing the pot cols but seems there are changes you're making in the department. >> there are draftic changes we're making. i am changing the metric policies and it will be brought to the planning commission for their approval and then forward to you for yours. >> questions? >> if i could follow up. when you say mr. louis and mr. fu were the principle planners but there were others involved. when they got the document requests was it your department's policy that they only produce what they have and nothing else? >> no. >> what is the policy? >> every public officer within the city and county of san francisco is actually a custodian of records so when a
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request is made to an individual that individual should be pursuing that to make sure that the request is satisfied. >> you say in this case you conceded to the extent it was produced much of it was not timely? >>i wouldn't say much of it. some of it wasn't timely. >> and you understood the request was in connection with a challenge that some resident was making to the project? ; right? >> yes. >> and did you do anything to slow down the approval of the project until you complied with the request? >> myself? no. >> well, does your -- does the department have any policy about when a citizen makes a request for documents that would support or at least they believe would support their challenge to the process that until it's been
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fully complied with no decision should be made? >> our policy is to respond to record requests in a timely fashion, and at that time the people who were responsible for the record request felt they had responded to mr. ringel's request. >> now, is it unusual there is nothing in the correspondence file? >> not necessarily. depends when the file is provided to the person. clearly at the beginning of a case there will be nothing or minimal number of correspondences in a particular file and depending on the complexity of the case whether anything is in the correspondence at the end closer to the hearing. >> what kind of materials should be placed in the correspondence file? >> any hard copy correspondence and emails as well. >> so correspondence from the
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developer, correspondence from any -- >> any substantive correspondence. >> but it didn't surprise you to learn i think it was mr. fu said he had nothing in his file? >> i don't believe he said he had nothing in the file. when i spoke to mr. fu prior to his departer and for clarity they weren't let go by the planning department and left by their own accord and he had emails and was in the correspondence folder and is a surprise to me mr. ringel didn't find anything in the folder. >> anybody have any further questions? >>i just wanted to be clear and i don't want to put words in your mouth. are you saying there could have been correspondence in the file and mr. ringel missed them? you
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said you were surprised to find out. >>i was surprised to find out mr. ringel found an empty correspondence file. i can't speak to why that is. all i can speak to what i got from the planner himself and when he gets a request he prints out the substantive emails with that case and files electronically and has a folder and puts them in the correspondence file. >> and so i just want to go back to then the definition of what is substantive and if that is a definition that has been generally shared with your planners and other personnel at the planning department because it seems to me that if that is subject to each individual planner's perspective then you
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may find a wide array of what people consider or don't consider substantive so some standardization of that throughout the department certainly sounds as if it's important. are you doing anything about that definition at this time? you said you were going under changes. >> thank you for that. as part of our retention policy we are trying to provide clearer definitions to what we consider substantive, but it has been conveyed to staff and non substantive emails are things that don't pertain to the project itself; right? if someone is requesting to see a docket we're not going to retain that request; right? if someone is asking what time the hearing starts we're not going to retain
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that email; right? but if they're commenting on the project that email does get retained. >> i know that we offer online training in terms of the sunshine ordinance task force and i assume all of your folks at the planning department have taken that training. i don't know if you have checked that or not, but i guess my question beyond that would be addressed to the sunshine ordinance task force as to whether or not the task force ever does in person training or meetings with different departments? i mean some departments in a way are more important than others. the planning department clearly is a very important department in the city. gets a lot of attention, a lot of scrutiny so it might
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behoove either -- the sunshine ordinance task force perhaps to really sit down with you and some members of your staff to discuss what is -- some of the issues you're faced with particularly when you have requests for information and for documents, so i don't know if that's something you want to approach the sunshine ordinance task force or perhaps during public comment if there is someone here from the task force that would like to comment on that, but i think these things can get a little murky depending on definitions or how the rules are interpreted by employees of a particular department. >> currently we're consulting with staff within the city attorney's office. >> yes. have you talked with
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director rahaim about the appearance tonight if. >> yes. he's aware of it. >> and he's aware that the sunshine ordinance task force made a finding against him that he violated these ordinances. >> yes he's aware. >> did he tell you any reason why he wouldn't come before us and give us his view of why we should not up hold the sunshine ordinance finding of him having violated an ordinance? was he busy tonight or was this too insignificant to speak to? >> no. it was my respond to come and represent the planning department and i would represent any other staff person but frankly had had little to do with the sunshine request of
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mr. ringel and your investigation whether he violated or not the ordinance is that. he doesn't directly supervisor the people collecting the information or respond to mr. ringel regarding the matter so the way i see it there is no violation against the director except that he oversees a lot of departments with a lot of responsibilities. >> but the record right now as you're aware and comes from the sunshine ordinance that he did violate the ordinance and the question is are we going to sustain that or do something else, so given the fact there has been a finding that the director of planning of the city and county of san francisco violated ordinances relating to open governments and providing
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materials under the sunshine ordinance do you think it might have been -- not have been appropriate for him to come before us and told us why he thought we should not sustain this? >> well, again i am here on his behalf -- >> i understand. >> and we respectfully disagree with the finding and we agree with the recommendation provided to you by your staff so -- >> is he busy tonight? >> i don't have his calendar sir. >> okay. >> commissioner andrews. >> two points and i may need the deputy city attorney to chime in on this, so was mr. mr. rahaim name's added by the task force after the respondent i see it listed in the complaint and after and is that
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appropriate? do we need a discussion about that? you need to have a name to it. you need a respondent's name. it was after the fact name of the department head because he's responsible. i believe the other folks are listed in there and that's that piece and there is one other thing i want to get to but i think we should take this first disbltd referral from the task force is exclusively on the question whether director rahaim violated the sunshine ordinance. the proceedings before the sunshine ordinance task force focused on the question whether the other employees of the planning department violated the task force. i don't know there was an adjudication of whether the question of rahaim violated the
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ordinance. i don't know why they a judidated the question if other employees had violated the ordinance and the referral was exclusively on this question, but nevertheless the question before you is whether director rahaim violated or not violated the ordinance willfully, so it requires either personal involvement or if there's circumstantial evidence you could deduce he was involved or not involved that's what you have to consider, but the question whether his employees violated the ordinance that is not before you. it's relevant whether it relates to whether director rahaim violated or not violated the ordinance willfully. >> we have been here before and
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a referral and i am seeing a audience member that referenced it and appropriate referral and now we're having this conversation and arguably while interesting and has bearing i'm not sure we're getting to the overall cause of this situation which i want to get to after we talk through this. >> right. i can only tell you that i don't know why it was that the task force didn't either adjudicate the question whether director rahaim violated the ordinance or refer to you the names of the people that violated the ordinance. i don't know the answer to those questions. i can tell you what the commission is sort of confined to tonight is just the question of whether director rahaim either willfully or not willfully violated the ordinance and the question of appropriate
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or inappropriate referrals is in some ways a broader discussion. >> yeah. well -- let me say this. this the second time this has come up. now the city attorney as i understand it advises the sunshine task force. is that true? >> there is a deputy city attorney that does. i don't know what -- >> and the sunshine task force identified the three individuals involved and conducted their investigation and had those three individuals come before them. they made a finding and it seems to me that it should have been incumbent upon the city attorney to tell them look the issue you had before you was not directly to the department head mr. rahaim and if you want
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to send a charge to the ethics commission -- not only on these individuals involved who violated, but you should give mr. rahaim an opportunity to appear before and you testify why he shouldn't be know responsible and charge to the ethics commission and then we could deal with it. now this is the second time we have been told -- well, because the referral wasn't by the right party, and mr. rahaim has had his due process, which i agree with in a sense, but it's frustrating to the sunone was doing its job and comes up in this forum. >> i hear you. i can't speak to the question because i don't
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know whether the advice was provided to the sunshine ordinance task force with respect to the referral. and whether maybe it was provided and the advice wasn't followed or maybe the advice wasn't provided. i don't know. sounds like you -- >> deputy director. i sympathize with what you're saying and in the same boat. we get the referral and someone different from the underlying hearing. we tried in this instance to give effect to the apparent intent of the sunshine task force and a hearing with respect to john rahaim. i would note and the investigator is catherine is more familiar with the facts than i am, but it does indicate that deputy city attorney there at the task force did sort of
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advise them that in fact they shouldn't be naming director rahaim as the respondent because that wasn't the person subject to the underlying hearing at the time, so faced with this situation and we are faced with this frustration and we thought take it as provided to us particularly given the last case that we had here and what we thought was the intention of the commission, and so we named -- we had mr. rahaim named as the respondent per the request of the task force. >> commissioner keane. >> yeah, mr. chair as is reflected by my colleagues' comments this is very disturbing now. we now had this twice. it's almost like a game that comes to us in terms of someone
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has violated a particular ordinance, a very important ordinance. a few months ago in regard to the park and rec with mr. ginsberg and some others, and we were told we could not have any kind of finding against the head of park and rec because it was the under lingses that did the work in the violation was and now we're told that in regard to planning department -- excuse me, the sunshine ordinance task force they were advised by the deputy city attorney at the time that they should pursue this with the underlings rather than mr. rahaim and now they were
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told well, no you should have been did it with mr. rahaim. this is like lucy and the football. >> [inaudible] >> sorry about that. >> let me -- but i want to pursue something further. i think we have enough evidence here and mr. rahaim violated the ordinance and it can be based on a willful or non willful violation. there is evidence to sustain a non willful violation given that we have in the record tonight that mr. rahaim is the head of this organization. he has one midlevel supervisor between him and these underlings who do these tasks. they report to the one midlevel person. we have been hold that mr. rahaim will discipline them if they do
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things that are in violation of any kind of ordinance. therefore implicitly i think we can make a finding in regard to this whole chain of activity that mr. rahaim was in deed involved. he was the one in charge. he was the one giving the orders. he's the one ultimately responsible. it's his department. we see that an ordinance has been violated so rather than slink away like we did a couple months ago and we have the wrong guy here. i don't think we can accept that. i think we have to make a finding that someone is responsible and the responsible person is the head of the organization and that is mr. rahaim. since we have an admission that the ordinance was indeed violated by his representative. that admission comes from the representative here tonight and i don't think we should drop this. we
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wouldn't be doing our duty to the citizens of san francisco in terms of telling them that we take seriously the fact that a particular department when it's told to turn over materials that the sunshine ordinance and the open government act require them to turn over that they just blow it off as was done here in a number of situations and if they blow it off -- well, there are a bunch of hearings that will occur by different departments, by the sunshine ordinance task force, by the ethics commission. there will be lots of words expended but nothing will happen, no consequence so i think when we finish up with the discussion tonight we should have a finding mr. mr. rahaim violated this ordinance. >>
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>> i just -- chairman i just wanted to build on commissioner keane's point which is simply this and i agree. i think this was a clumpy and ilelegant referral that has us talking about not the substantive component of it but as i heard it recounted in the department there was untimely responses to the submission for the request for documents. you have to have a culture of accountability and in mr. -- is it mr. ioma? in your recounting of you said you felt everyone felt they were doing the right thing so there was no reason for mr. rahaim should be involved and in fact if there is an agreed assumption we're doing it right at some point the accountability works the way up to the top so
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whether the referral was made properly or not if you change the culture of an organization you start at the top. that's my argument to move forward and i support commissioner keane's recommendation, but for me the more substantive piece is, and i don't know there needs to be this. the question beforehand was asked if there is a similar request put forward from this point on is there a trigger mechanism to slow down the administrative process so that the person requesting records clearly needing these records and documents for their particular interest in the project -- is there any mechanism and any way -- has it happened -- has a precedent been set and a project is slowed down because you haven't fully given information over to what would be just a person requesting
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information or possibly someone who was an opponent of the project in the department? have you ever heard that? >> actually not that i am aware of to the point you made. i'm not aware of any process being halted because the sunshine request hasn't been fulfilled. having said that there is an appeal process by most commissions and administratively to that matter to afford anybody due process. >> so when mr. ringel recounted when he got his documents and in a couple of cases and at least how he recounts it passed due dates where he could have submitted. do you know that to be the case? do you know if some of the cds were released to
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his possession? . >> certainly the last ones but they were emails not substantive to the matter. my understanding since i adopted this matter is mr. ringel's request were specific to correspondence and emails, and so when it went to the sunshine ordinance task force it was referred to them because one of his family members' emails was not included in the correspondence provided to the records request, and we would contend it's just a non substantive email. in fact i haven't seen it so i can't speak to it. that was the crux why it got to the sunshine ordinance task force. >> thank you. >> can i ask mr. ringel a question? as you stand here today are there still documents that you believe that the planning department has not
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delivered to you. >> absolutely. >> what are those -- >> they complied with the lasted search that he mentioned and the fourth cd i was given and after six hearings knowing there was a referral to the ethics commission it was pending and they were warned that it would be that exact same search but not for the deleted emails, all emails, anything held within the custody of the planning department was my request, and i understand -- i'm not a political person. like i only registered to vote which is weird but i never thought my vote mattered and i want to preface this i don't understand the politics but i understand the ethics commission and the relationship with the sunshine ordinance task force. it seems to be strange. because they didn't want to send the case here. i asked them to so there was accountability on behalf of those at the planning department
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and our faith in government is there is accountability and responsibility and after six hearings with the sunshine ordinance and quite a long process i can tell you that he was given notice. absolutely. he sent whoever was in charge of sunshine ordinance complaints to the first hearing and to the second hearing and that was accompanied by the acting environmental review officer sarah b jones and because i was concerned on time because i needed the files by the last administrative hearing they told mr. rahaim or thomas de santo mentioned earlier they were to come to the tac -- what is it? >> [inaudible] >> compliance and amendments committee and everyone agreed it would be the next wednesday, the procedural notice and they told
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